City Council splits over City Attorney’s eligibility to run for mayor

By VERNON ROBISON

The Progress

After listening to the opinions of no less than four different attorneys, the Mesquite City Council voted to not take any further action regarding the eligibility of City Attorney Bob Sweetin to run for mayor in the upcoming election.

In a split 3-2 vote, held after more than an hour of discussion on Tuesday night, May 12, the Council decided not to formally notify Sweetin that he is in “potential violation” of municipal code in filing to run for the office of mayor. A yes vote would have continued engagement of outside legal counsel to draft a letter of notification to Sweetin at an estimated cost of $10,000 in legal fees.

Since the item dealt with a political opponent, Mayor Al Litman recused himself at the beginning of the discussion, exiting the dais and  leaving the item in the hands of Mayor Pro Tem Brian Wursten.

Councilwoman Sandra Ramaker had placed the item on the agenda. Ramaker cited Municipal Code 1-6-1 which prohibits any employee of the City, with the exception of City Council, to be a candidate for the office of Council member or Mayor without first resigning his/her position.

“Mr. Sweetin has not resigned from his office of City Attorney while maintaining his candidacy for the mayor,” Ramaker added.

Ramaker explained that she had heard questions from community members regarding Sweetin’s eligibility to run. These questions had led the Council to seek an opinion from independent legal counsel earlier this year. But with the COVID-19 restrictions which went into place shortly therafter, the matter had not ever had a public hearing, Ramaker said.

“So I presented what I thought should go on the agenda and gave it to the City Manager to put on the agenda,” Ramaker said.

City Manager Aaron Baker had then connected her with the same outside counsel to receive legal review on the item, Ramaker said.

Baker explained that this was standard procedure. Every proposed agenda item goes through a legal review before coming to the Council, he said. Usually Sweetin performs that review, he added.

“But I knew that Mr. Sweetin was conflicted on this item,” Baker said. “So I knew it was in the best interest of the City to have outside counsel look at it. I connected Ms. Ramaker with the previous outside counsel.”

In a presentation before the Council, Sweetin began by bringing his status as employee of the City into question. He explained that in 2018, the City had entered a contract with Las Vegas law firm Davison Van Cleve to provide City Attorney services. Sweetin said that, at that time, he went to work for that firm and technically ended his employment with the City. This put him in a unique situation of not being directly contracted with the City at all, Sweetin said.

“I would actually call myself an indirect independent contractor,” Sweetin said.

But Jeff Barr, one of the attorneys which had been retained by the City on this matter, called this into question before the Council.

“This idea that Mr. Sweetin is not an employee is a specious one,” Barr said. “The ordinance talks in terms of either an employee or officer of the city. And the city charter is very clear that the city attorney is an officer of the city.”

Ramaker also insisted that, despite the contract arrangement regarding Sweetin, the City was treating him as a de-facto employee.

“My understanding is that someone who receives payment, who receives PERS, who receives medical benefits from the City would be classed as an employee,” Ramaker said. “To me, Mr. Sweetin, even though he’s got a contract through somebody else, he is still an employee.”

But Wursten raised the point that the question of Sweetin’s employment status was not really the main issue before the Council. He cited Nevada Revised Statute 613.040 which prohibits an employer from barring an employee from becoming a candidate for office.

“Here is the problem, our Municipal Code does that,” Wursten said. “So we are going against state law right there, which we cannot do.”

In addition, Wursten appealed to Nevada Revised Statute 281A.520 which makes it unlawful for public officers to cause a government entity to incur expenses of public funds to oppose a candidate.

Wursten pointed out that Mayor Litman fills a position at the City Rec Center as a SPIN instructor. As such, he may be in the same position with respect to the Municipal Code as Sweetin, he said.

“So here is a situation where we are opposing one person but not the other who very well could fall under this as well,” Wursten said. “So we have to do all or none. Otherwise we could be in violation and actually be ethically liable as a Council.”

Barr cautioned that the mayor’s status and eligibility for candidacy was not on the agenda for that night’s meeting. But if the Council saw a potential violation from the mayor, it could certainly put it on a future agenda and have a similar letter drafted to notify him of possible violations as well, he said.

Wondering what the objective of this item was, Wursten doubted that it could just be to spend $10,000 for legal counsel to draft the letter to Sweetin. “I mean, look, we are doing this to Bob, writing a letter,” Wursten said. “Then next we are doing it to the mayor, writing a letter. Then we are going to turn around and have lawsuits on both sides of it. If neither candidate is eligible will we hold a special election? I’d just like to know the endgame, here. What are we really trying to accomplish with this?”

“It’s clear,” Councilman Rapson interjected. “We are trying to get rid of one of the candidates. And I don’t want to be any part of targeting a candidate.”

Councilwoman Annie Black questioned how Sweetin, as a candidate for mayor, could continue providing unbiased legal services to the city. “I’ve had a hard time wrapping my mind around this,” Black said. “How is the mayor’s legal council going to be his political adversary without that being some sort of conflict of interest? This is a clear and glaringly obvious conflict of interest and (Sweetin) needs to resign his position. That is pretty cut and dried.”

But Sweetin’s attorney Daniel Stewart, who attended the meeting via a phone connection, argued that the item before the board should not be Sweetin’s qualifications as an employee but rather his qualification as a political candidate.

“If Bob Sweetin is a bad employee, if he gives conflicting legal advice, if he violates his duties to the mayor, then he can suffer the consequences as an employee,” Stewart said. “But what is being asked tonight is for him to suffer consequences as a candidate.”

Councilman George Gault asked for a final clarification. “So it is our city code that is the problem here?” he asked Sweetin.

“That is correct,” Sweetin replied. “It is the city code that governs all of this and that’s the only place this problem exists.”

“And that is superseded by the Nevada Revised Statute?” Gault asked.

“That is correct,” Sweetin said.

“So is this whole thing moot?” Gault asked. “We really have no jurisdiction over either case until we change our ordinance to comply with the statute.”

“I would agree with that,” Sweetin said. “The council dais is not the place for this conversation. There’s a number of ways to challenge a candidate’s eligibility for office. Taxpayer dollars and the council dais is not one of them.”

Wursten made the motion that the City Council NOT engage outside legal counsel to put Sweetin on notice of a potential violation of city code. Rapson seconded and asked that the motion include that a change to the Municipal Code be drafted to resolve the apparent conflict with statute.

Wursten, Rapson and Gault voted in favor of the motion. Ramaker and Black were opposed.